K. VISWESWARA RAO Vs. J. SANGARAMA

JUDGEMENT

(1.) DEFENDANT is the Appellant the confirming decision of the Additional District Ganjam -Boudh, Berhampur.

(2.) THE property In dispute is a pucca house situated in Berhampur town. Plaintiff's case is that one G. Brundaban and his sons were the original owners of the suit house and they mortgaged it to Berbampur Co -operative Urban Bank Ltd. on 13 -11 -1942 as security for some loan. As they could not discharge the loan within a reasonable period, the Bank filed Dispute No. 11 of 1949 -50 (Ext. F), against the mortgagors under the Madras Co -operative Societies Act, 1932 (hereinafter called as 'Madras Act') and obtained award from the Sub -Assistant Registrar of Co -operative Societies on 1 -11 -1949 (Ext. G). On 24 -6 -1950 an application was made for execution of the award (vide E P. 213 of 1949 -50, Ext. D) before the Assistant Registrar, Co -operative Societies, Berbampur as a result of which the suit house was put to sale. On 31 -1 -1963 the Plaintiff purchased the against Judge, suit house and obtained sale certificate vide Ext.1 and took delivery of possession of the suit house on 15 -3 -1963 and remained in possession thereof. In the mean time one K. Satyanarayan obtained a Money decree against the aforesaid T. Brundaban and his sons in M.S. 15 of 1949 of the Court of Subordinate Judge, Berhampur. In Execution Case No. 34 of 1952 the disputed house was put to sale and one K. Rammurty Subudhi, father of the Defendant, purchased the property in Court sale held on 20 -10 -192 as per sale certificate (Ext. A) issued on 1 -10 -1956. The sale was confirmed on 10 -5 -1956. Thereafter K. Rammurty Subudhi applied for delivery of possession of the suit house in E.P. 34 of 1952. But by then the execution proceeding before the Assistant Registrar, Co -operative Societies was also pending. The Bank also entered appearance in the civil Court and filed a petition dated 13 -10 -1952 a few days before the civil Court Sale and wanted that the civil Court sale would be subject to mortgage and it appears, the same position was accepted by the Court as the sale certificate, Ext. A. clearly mentions that the sale was subject to mortgage.

(3.) NO oral evidence was adduced by either side and the parties went to trial on the basis on a large number of documentary evidence mostly pertaining to the two simultaneous proceedings before the Assistant Registrar and before the civil Court. The trial Court after hearing the parties came to the following finding: